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Brexit: Could mutuality be the key?

1 February 2017

With the UK Government firmly indicating a "Hard Brexit", regulatory cooperation between the UK and EU is set to be key for a number of industries post-Brexit. Jeremy Hunt, the Secretary of State for Health, has recognised that while he does not expect the UK to remain part of the EU medicines regulatory framework (read more here), he expects the UK to continue to work closely with the European Medicines Agency (EMA) and potential mutual recognition between the MHRA (The Medicines and Healthcare products Regulatory Agency in the UK) and the EMA. Arguably, and as Mr Hunt emphasised, this is something that would benefit both the UK and the EU and will be encouraging for the UK life sciences industry.

Beyond the life sciences industry, could this be an early sign of how the UK Government will look to establish regulatory arrangements across other regulated industries? A way of leaving the EU whilst preserving many of the practical (and mutual) benefits which membership currently provides for both the UK and the EU. The Law Society Gazette has reported a similar idea for the mutual recognition of professional services (see its report of 30 January). Labour's Sir Keir Starmer, the Shadow Secretary of State for Exiting the EU, has gone even further by questioning in the Commons yesterday why the UK would want to be outside various EU agencies including the EMA and the European Aviation Safety Agency. The interplay between the EU regulators and the UK post-Brexit is very much at the top of the agenda.

From a legal perspective, the idea of mutual recognition appears to be vital to making the UK Government's intended Great Repeal Bill work. Simply retaining EU laws and recognising licences granted by EU institutions (even committing to track developments in the various EU laws) does not guarantee the UK, as a third country following Brexit, any form of mutual recognition. Whether this can be achieved politically remains to be seen, but as with any good negotiation, this route is likely to work best in those industries where there are already well-established benefits, a kind of symbiosis, between the UK and the rest of the EU.